The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-01-05
SUPREME COURT CASES.
Reported for The Clarion BY w. r. Harper
httorney-st-Law, Jackson, Miss.
HoLBERG,
Term-IS SO.


V.
n. o. INs. ASSOCIATION.
Woods, Mcintosh & Williams, for the
appellant.
Boyle & Boyle and Orr & Sims, for the
appellee.
Appeal from the Circuit Court of Nox-
ubee county. Hon. w. NJ. Rogers,
Judge.
On November II, 1884, J. Pollock &
Co., owners of stock of merchandise in
Macon, insured the same in several COM
panies for $4,000, against loss by fire.
This insurance was issued by r. G. Pat
ty, agent of the several companies,
81, 900 of which was taken in the New
Orleans Insurance Association.
On Nov. Is, 1884, Pollock & Co. sold
this stock of merchandise to Jacob Bol-
berg and A. Klaus, composing the firm
of Holberg & Klaus. On the policy of
the New Orleans Insurance Company
the following was written: "For value
received we hereby transfer, assign and
set over unto Holberg & Klaus and their
assigns, all our right, title and interest
in this policy of insurance, aHd all ben
eft and ad vantage to be derived there
from. Witness our hand and seal, this
22d day Of November, 1884.
j. POLLOCK & Co.
Sealed and delivered in presence of
Robert c. Patty" Patty also made an
entry of this assignment of the policy
in book kept by him for that purpose.
This policy of insurance contained the
following condition: 'If any change
takes place in the title or possession of
the property, whether by sale, transfer
or conveyance, legal process or judicial
decree, or the policy is assigned without
consent of the Association endorsed here
on" then this policy is to be void
On Dec. 10, 1884, Klaus withdrew
from the firm of Holberg & Klaus and
released by parol to his partner, Jacob
Holberg, all his in. crest in the stock of
merchandise and the several policies of
insurance thereon. No written transfer
was ever endorsed on the policy of the
New Orleans Insurance Company, and
TO consent to such transfer ever pro-
cured to be so endorsed.
On April l, 1885, Patty issued to Hol-
berg policy of insurance in the Home
Insurance Company for $4,000, this
policy recitiDg that Holberg already had
concurrent insurance in the New Or
leans insurance Association for $4,000,
and in the Columbus Banking and In
surance Company for $4,000, making
the total insurance SIS, 900, the same as
when the policy OF the New Orleans In
surance Company was issued. A fire
having occurred in Macon, Jacob Hol-
berg brought this action on this policy
of insurance against the New Orleans
Insurance Company. Some additional
facts are stated in the opinion of the
court. The jury found for the plaintiff
and the defendant appealed.
ARNOLD, J., delivered the opinion of the
Court.
The policy was not forfeited by the
sale and assignment from Pollock & Co.
to Holberg & Klaus. The written at
testation of the assignment of the policy
endorsed on the policy by the agent of
the Association who issued the policy
with knowledge of the sale of the goods,
was sufficient compliance with the
terms of the policy in reference to sales
and assignments.
No condition of the policy was VIC
lated by the insurance taken on the
stock of goods, after the policy sued on
was issued. There was insurance to the
amount of eleven thousand dollars on
the goods at the time the policy in suit
was issued, and this concurrent insur-
ance was recognized and allowed by an
endorsement in writing on the policy
in suit. The subsequent cancellation of
one of the policies for a part of the
eleven thousand dollars, aud the issu-
ance of new policy by different COM
pany for the exact amount of the can
celled policy, did not vary the terms of
the contract.
The sale or transfer by Klaus of his
interest in the stock of goods to his
partner, Holberg, without the consent
of the Association endorsed on the
policy, was not breach of the condi-
ton of the policy against change IN
the title or possession of the property,
by sale, transfer or conveyance. Under
a literal construction of this provision
Of the policy, if the assured in the usual
course of business had sold any article
Of their stock to any person, or if either
Of the partners had died, and his inter
est had thereby devolved upon his
heirs or the surviving partner, or if in
LuG 6AlGcuCltS VI UucIuCoo
nad occurred in the character and |
amounts of the respective interest of the |
assured in the stock as among them |
selves, the policy would have BECOME |
void. 1t cannot be believed that such |
vas the intention of the parties. If any
iuch result were contemplated, it should |,
nave been clearly expressed in the
policy. 1t cannot be fairly implied |
rom the language employed or from
he nature and objects of the contract
4 better view, not inconsistent with the /
language and purposes of the contract,
S to regard the provision as inserted in
he policy for the protection of the
insurer against the risk of having |
trangers, without its consent, substi-
uted in the place of the original parties
nth whom it contracted, and to con-
true the provision as intended not to
nterdict all sales, transfers and convey
noes, but only such as were made by
he parties insured, to parties not in
ured by the contract. Wood, on Fire
insurance. section 334, and authorities
here cited.
The Judgment would be unhesitating-
= affirmed, if it were shown that the
tock of goods was burned. as alleged,
ut there is no evidence or proof of loss
'hatever, in the record, and for this
sason the judgment is reversed. +